" In State v. Marshall, 206 Iowa 373, 220 N.W. 106, defendant was charged with, and convicted of, larceny from the person. A request for an instruction on the included offense of larceny was refused.
We now believe and hold the dissenting opinion expresses the sounder view. The dissent rightly cites State v. Marshall, 206 Iowa 373, 220 N.W. 106, as authority for the proposition the evidence of the case must be considered in determining whether one offense is includable within another. "* * *
With this contention we cannot agree. We held in State v. Marshall, 206 Iowa 373, 376, 220 N.W. 106, 107, that larceny is an included offense in the charge of larceny from the person. We there stated as follows:
One argument should be discussed separately. Under section 204.20(5), The Code, 1971, the penalty for possession of narcotics held for sale was the same as that prescribed for the sale of narcotics. It is suggested the offense could not be "lesser" if the penalty were not lesser. Our definition of included offenses, such as the one given in State v. Marshall, 206 Iowa 373, 220 N.W. 106, has never made reference to a requirement of a lesser penalty. Our previous holdings negative any inference the possible penalty for a criminal violation is in any way material to a determination of whether one offense is included within another.
"To be `necessarily included' in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof." See also State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106 (1928); People ex rel. Wachowicz v. Martin, 293 N.Y. 361, 364, 57 N.E.2d 53, 54-55 (1944). This Court's decision in Stevenson v. United States, 162 U.S. 313 (1896), reflects the "practically universal" practice.
Our older cases relied on an elements test similar to that enunciated in Blockburger , 284 U.S. at 304, 52 S.Ct. at 182. See State v. Marshall , 206 Iowa 373, 375, 220 N.W. 106, 106 (1928). In State v. Everett , 157 N.W.2d 144, 148โ49 (Iowa 1968), we cited Marshall as authority in applying an elements test in determining that operation of a motor vehicle without the ownerโs consent was not a lesser included offense of larceny of a motor vehicle.
An offense is necessarily included in another if "the minor offense is necessarily an elementary part of the greater." State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928). If the minor offense is so included, "the major offense cannot be committed without also committing the minor offense."
Instead, the determination depends on whether "the minor offense is necessarily an elementary part of the greater." State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106, 106 (1928) (emphasis supplied). This distinction can be illustrated by examining the relationship between rape and assault with intent to commit rape as those offenses were defined prior to the criminal code revision.
Specifically it argues "daytime" is an element of the breaking and entering offense not included in the elements of burglary. The principle involved in determining when an offense is necessarily included in another within the meaning of ยง 785.6 was explained in State v. Marshall, 206 Iowa 373, 375, 220 N.W. 106 (1928), as follows: "Every crime charged consists of certain specific elements, and if, from the elements of the crime charged, certain elements thereof may be taken, thereby leaving the necessary elements of another crime, the latter would be an included offense.
State v. McCall, 245 Iowa 991, 997, 63 N.W.2d 874, 877, deals with the subject matter at hand, and we there stated: "The rule is that two factors must combine to require the submission to the jury of the included offense: (1) The so-called included offense must be necessarily included in the offense charged, and (2) the record must contain evidence justifying a finding by the jury of such included charge, rather than of some higher offense." In State v. Merrill, 242 Iowa 1156, 1160, 49 N.W.2d 547, this court was confronted with factual conditions similar to those presented in the case at bar, and we there quoted this from State v. Marshall, 206 Iowa 373, 220 N.W. 106: "* * * the evidence must justify the submission of the included offense [also] that where, under the evidence, the defendant is clearly guilty of the offense charged, or not guilty at all, it is not error to fail to give instructions with reference to included offenses." There follows this conclusion: "Applying these established legal principles to the facts * * *, we think the trial court, by submitting the included offense of robbery without aggravation, gave appellants, to say the least, all that they were entitled to."